Online Terms of Service: A Shield for First Amendment Scrutiny of Government Action

By Jacquelyn E. Fradette

Abstract

Part I of this Note will canvas popular opinions and perceptions about First Amendment rights on the Internet using examples of public outcry over recent instances of speech limitation. It will also discuss the state action doctrine generally and how the presence of this doctrine most likely renders certain popular public constitutional intuitions about the First Amendment erroneous.
Part II will provide an overview of how courts have taken an expansive and protective view of private ordering between online parties. It will discuss how courts have developed a robust freedom to contract jurisprudence in the Internet context. Because courts essentially have a presumption in favor of the enforceability of the contract so long as it meets basic formal requirements, it is difficult for users to challenge the Terms of Service between themselves and an Internet speech forum provider substantively or procedurally. Coupled with this doctrinal presumption is an ideological inclination in favor of private ordering on the Internet as the best way for parties to organize themselves to reduce bargaining and transaction costs.
Part III will examine how this robust freedom to contract has affected online speech. Particularly, this Note will discuss the rise of government take-down requests made to Internet speech forum providers regarding non-copyrighted material. This Note will contend that Internet Terms of Service contracts effectively shield the government from constitutional scrutiny of its take-down requests. The fact that users and the government now have to act through the intermediary of both the Internet speech forum provider and its Terms of Service has limited speakers’ ability to challenge government action concerning their speech directly.
Part IV will focus on the lasting implications of the Terms of Service regime on speech rights. First, it will argue that the government’s use of the Terms of Service as a potential shield from constitutional scrutiny puts the Internet speech forum provider in the position of having to vindicate users’ rights on their behalf. Given that the ratifiers of the Constitution likely did not contemplate that one day citizens would need to rely on private companies for this function, this Note will examine whether there are sufficient market incentives in place to ensure that an Internet speech form provider will execute this newly developed responsibility with sufficient transparency and to the extent that users desire. Second, it will argue that the Terms of Service regime in the speech context has created the rough equivalent of the third party doctrine in the privacy context, but with significantly fewer formal limitations on government action. Finally, this Note will propose two solutions to this problem: (1) a statutory regime requiring more legal process in order for the government to make a takedown request to an Internet speech form provider regarding a private citizen’s speech; and (2) greater scrutiny of contract terms which will consider the free speech implications of some Terms of Service provisions